Transcript Document 7343824

AMERICAN WAY OF
ZONING
A ROAD WELL TRAVELED
Zoning/Land Use Regulation
Developmental History

Formation period – inception to 1900

Comprehensive nuisance controls
“Let Each Use His Own So As Not To Injure
Others”
Private and Public Nuisances

Nuisance Concepts
Unreasonable interference with a property
right
 Non-Trespassory Invasion
 Nuisance Per Se – At all times and places
 Nuisance Per Accidens – Times and
Location

Nuisance Regulations
Not necessary to show neglect or reckless
use
 Suitability of the use to the character of the
neighborhood]
 A person may not come to the nuisance
 Remedy is abatement or injunction

Conceptual Period 1900 - 1926
Developing formation of the police power
 Concurrent movements – housing, pure
food and drug, parks, good government,
and City Beautiful
 Formation of the American Institute of
Planners and the visits to Europe
 The discovery of Swiss ‘Zoning’

New York City - 1916
 First
comprehensive zoning
ordinance adopted
Zoning shapes the city. Through zoning, a city
regulates building size, population density and
the way land is used. Zoning recognizes the
changing demographic and economic conditions
of the city and is a key tool for carrying out
planning policy. New York City enacted the
nation's first comprehensive zoning resolution in
1916
Nature of the NYC Ordinance
Pyramidical
Housing
Commerce
Industry
Heavy Manufacturing
Cumulative
NYC Ordinance Based
Legislation
Enabling Legislation
 The Players

Planning Commission
 Governing Body
 BZA or Board of Adjustment
 The Comprehensive Plan
 The Zoning Text and Map

Purpose of the Ordinance
To divide the community into use zones
and intensity districts
 To establish the district regulations
 Create the enforcement powers
 Create the terms of art and definitions
 Create the supplemental regulations
governing the operation of the ordinance

The Original Map
The Interim 1916 - 1924
Zoning in America is a revolutionary step
in the face of unbridled and unfettered use
of private property
 However, there is no serious appellate
court test of the constitutionality of this
instrument

Adoption Spreads Rapidly
The rush to adopt state legislation (Kansas
in 1921) is fueled by the efforts of the
various state chambers of commerce,
leagues of municipalities and key planners
in major cities.
 Within 6 years after the NYC ordinance, at
least 1,800 American towns and cities
adopt zoning as a land use control tool.

The Opponents
Rapid adoption does not escape the notice
of many organized lobby groups
 Notable – The National Realty Association
and the Homebuilders Association
 The Stage is set in Euclid, Ohio

Village of Euclid, Ohio
Euclid, in 1922, is a small town – a suburb
of Cleveland Ohio
 Summary of facts:
Ambler owned property in Village of Euclid that it
intended to sell for industrial purposes. A new
zoning ordinance (1922) in Euclid, however,
prevented industrial uses on significant portions of
the property, only allowing development that
commanded a considerably lower sale price than
Ambler expected.

Ambler Realty v Euclid


What is the plaintiff's complaint?
Zoning that excludes industrial uses in a growing industrial corridor
reduces the value of the land and constitutes a taking. In addition,
zoning in general could significantly disturb the metropolitan real
estate market by thwarting natural market forces.
What is the basis for the plaintiff's legal claim?
14th Amendment to the U.S. Constitution guarantees that liberty and
property cannot be taken without due process of law and payment of
just compensation. Claim is that the zoning ordinance violates this
amendment. (This is a question of substantive due process, rather
than procedural due process.)
District and Ohio Supreme
Court
The district court (Ohio) finds for the
Village of Euclid.
 The Supreme Court of Ohio upholds the
district court decision finding that the use
of zoning based on police power
objectives is a constitutionally permissible
action

Federal District Court
Ambler Realty jumps jurisdictions and files
and parallel suit in U.S. District Court
under federal questions.
 Judge Westerhaven finds an equal
protection issue and rules for Ambler
Realty
 The controversy is now set for the the U.S.
Supreme Court

U.S. Supreme Court

Supreme Court reverses lower court's decision that Euclid's
zoning ordinance was unconstitutional. It decides that the
municipality can use its police power to enforce zoning
ordinances that are established to ensure the public
good. It determines that industry can be excluded from
residential areas, even in a growing industrial village. It
also determines that even retail trades and apartment
buildings can reasonably be excluded from single-family
areas in order to preserve an order, safety, and preferred
character. It notes that the value lost on the land in
question is irrelevant.
Sutherland’s Decision
A 5-4 vote of the U.S. Supreme Court
 Based on solid studies and a plan
 Value of property is speculative – a mere
diminishment is not a taking
 Protects injury to the residential public

Review of Constitution Basis
The Police Power – The power reserved to
the states to protect the public health,
safety and welfare
 The 5th Amendment - “nor be deprived of
life, liberty, or property, without due
process of law; nor shall private property
be taken for public use, without just
compensation”

Applicable to the States

The 14th Amendment - No State shall
make or enforce any law which shall
abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdiction
the equal protection of the laws.
In Simple Terms
The government must not take private
property for a public purpose
 Due process of law is required to deprive
anyone of a property right
 Equal protection requires that people must
be treated the same unless there is a
compelling reason for the difference

Taking
A “taking” is a touching or a physical
invasion of property.
 A regulatory taking occurs when the
governmental restriction or burden on
property is so great that in renders the
property valueless or practically valueless

Due Process

Due Process

Procedural – Related to fairness and equity of
treatment. In other words “reasonable”

Substantive – Relates to the very substance
and spirit of the law. It goes to the
fundamental purpose of the legislation
A Break in Subject
Private v Public Regulation

Simple put, public land use regulation is
only a part of the burden placed on the
use of private property

A simpler way is to do it to ourselves
Why Private Regulation
Empowers the market – guarantee of
useful ownership
 Protect sellers from buyers and sellers
from buyers
 Swift and merciless enforcement
 Avoids governmental entanglement

Private Regulation – Fee or
Contact

Private Regulation as Ownership

In this mode, an instrument is created to
run with the title to property giving
adjacent owners (appurtenant) or remote
owners a right on the land of another (in
gross)
By Contract – Its Elements
Mutual Agreement – Free informed
consent
 Offer and Acceptance – expression of
mutual agreement, offer must be identical
to substance
 Consideration – of value
 Object – purpose must be lawful/valid
 Time – specifies the framework for duties

Contractual Instruments

Servitudes
Negative – To refrain from a specified action
 Positive – An affirmative duty to perform some
act
 Equitable servitudes – Benefit and burden is
reciprocal

Covenants – Deed Restrictions
A contractual agreement to restrict the use
and enjoyment of property
 Covenants, as a contract, must run for
specified periods of time
 Method of amendment or repeal
 Must serve a substantial purpose and not
violate a protected constitutional right

Covenant Examples
Must have a two car garage
 All building plans approved by developer
 No business in homes
 No external color change
 No metal roofs
 Pickup trucks must be screened
 Fences constructed from 1st quality wood

Public – Private Relationship
First, you can’t fight City Hall. Our
regulations take precedence over private
when ours are more restrictive
 Second, the government will not enforce
or honor private regulations between two
parties
 Third, hell has no fury like a civil suit
between two property owners

Back to the Zoning Ordinance
Preliminary Preparation

Authority – Enabling Legislation
Legislation specifies the exact procedure and
elements that must be prepared prior to the
adoption of the ordinance
 Hearing and adoption procedure
 Amendment procedure – who may initiate
change

Introduction
Purpose and statement of goals
 Savings clause
 Interpretation
 Definitions - sample


Motel (Hotel) is any building containing six or more guest rooms
intended or designed to be used, or which are used, rented or
hired out to be occupied, or which are occupied for sleeping
purposes by guests.
District Scheme - Model

At a minimum – each regular district
contains the following:
Permitted Uses
 Uses by condition or special use
 Special restrictions
 Bulk and dimension
 Parking and spatial requirements
 Authorized variances

District Models

Regular districts are nearly always created
in a pryamidical fashion based on intensity
of use as measured by the bulk and
number of DU’s per acre or lot area – and
by the amount or type of mixing permitted
The Residential Districts

Large lot districts
Range 1 du/80 acres to 3 Ac./du or slightly
smaller
 Rationale ranges from protecting the “haves”
from the “have-nots” to resource protection
and open space. Serious legal problems are
usual in expanding areas without sufficient
justification

Residential - Continued

The low density districts
Generally designated from 2 to 8 du’s per
acre
 The standard is 3 units per gross acre
 Designed to accommodate the bulk of the
residential population
 Only local residential streets necessary for
service

Manufactured Homes

One of the great battles of American
zoning
Its Changing Face
Compliments of Steve Gibson
Residential - Continued

Medium density districts
Generally ranges from 8 to 25 du’s per gross
acre
 Basically designed to accommodate the light
service, garden style or walk-up multi family
unit with a general limitation of 3 or 4 living
stories
 Transportation services ranges for residential
streets to collectors

Residential - Continued

High density residential
Ranges from 26 to 240 units per gross acre
depending on floor area ratios and open
space requirements
 Used to transition from residential to
commercial districts
 Requires minor to major collectors

Commercial Districts

Center districts
A traditional district designed to service the
CBD
 Generally limited to public service, personal
services, retail and F.I.R.M. services (finance,
insurance, real estate and marketing
 Regulated by footprint, FAR, and total square
feet

Commercial - Continued

Neighborhood service
Essentially designed per group of
neighborhoods to accommodate the daily
needs of residents
 Generally controlled by selling area and
square ft. limitations
 Heavy limitation on outside storage
 Requires minor to major collectors

Commercial - Continued

Highway Service
Designed to accommodate the automobile
and to direct traffic to major collectors and
arterials
 The American dumping ground
 Designed for high visibility and and large
outdoor storage capability
 Commonly used as transition for CBD to
neighborhood commercial

Commercial - Continued

Regional Scale – Cluster
Designed to accommodate those uses that
are considered to be at a “mega” scale
 Designation is by sq. ft. and traffic count
usually starting at 15,000 vpd
 Requires major arterials

Commercial - Service

Office – Institutional Districts
Designed as the basic “working districts of
the community”
 Retail and mixed use is typical to serve the
working area
 Heavy use as transition district from light to
heavy commercial areas or as buffer to
neighborhoods

Commercial - Continued

Heavy Service
Designed for the commercial and semicommercial uses
 Use pattern is determined by the type and
amount of externalities present
 Often linked to special transportation needs
(warehousing) and serve as a transition to
manufacturing

Manufacturing – Fab.

Light and Park Manufacturing
Designed to bring selected “working areas” to
park-like settings
 Uses are selected by the amount of
externalities and ability to contain their
activities to local lot areas
 Design applications
 Serve as transition to general manufacturing

Manufacturing - Continued

General Manufacturing
The “workhorse” of the community zones.
 The basic manufacturing and fabrication
center of the community
 Uses are regulated by the specific use and
intensity of the operation, type of hazard, and
extent of storage

Manufacturing - Continued

Heavy Manufacturing

Where everything else goes including mobile
homes
Heavier than Heavy
Special Districts

A special district is often called an
“overlay.” An overlay is a special set of
regulations that are particular to the
special district. The underlying district is
called the “parent” district
Overlay Examples
Historic Preservation District
 Floodplain District
 University Overlay District
 Watershed and Lake Protection
 Transit Oriented Devel. – Compact
Neighborhood District
 Airport Overlay

Specific Provisions
Non-Conforming Uses
 Vested Rights
 Local State Exemptions
 Home Occupations
 Congregate Facilities
 Accessory Dwellings (ECHO)

Non-Conforming Use

Previously Legal Conforming Uses
A use of the land or structures that once
legally conformed to the ordinance (or preexisted adoption), but because of adoption or
change does not conform to district
regulations
 Distinguished from illegal uses

Methods of Control

Onerous Restrictions
Limited or no change
 Cannot change uses – or to another
conforming use
 Cannot be replaced if damaged or restored
 Cannot be made more non-conforming

Further Methods

Amortization
A reasonable time period can be established
for each type of use
 The “grandfather” right runs with the use until
the amortization expires
 Or, the use is replaced with a more
conforming use?

Vested Rights
Similar in Concept to a non-conforming
use right
 Vesting indicates the point at which the
right to develop cannot be taken
 Estopple – related concept

Vested Rights – Cont.

Slow and Quick Vesting
Valid Permit
 Substantial Investment
 Reliance on officials
 Good Faith
 Substantial Investment
 Estopple

Home Occupations
Home occupations are traditional and
demand will increase as the electronic
cottage becomes a reality
 American attitude, however, shows
increasing displeasure with an activity in
neighborhoods other than residential living

Home Occupation - Rules
Generally, limited to personal services
 No more than a certain percent (25)
dedicated to the occupation
 Must be an active residence
 No stock in trade
 Employees
 Activity/parking/storage/delivery

Congregate Facilities
One of the true hotspots in American
Zoning in the 1990’s
 Congregate facility is jargon for groups
facilities or group homes

Disabilities
 Elderly
 Homeless
 Juvenile

- Half Way
- Drug Rehab
- Battered persons
- Religious
Congregate Limitations
ADA reasonable accommodation
 State usurpation
 Supervisors
 Number of residents
 Spatial separation
 Restriction on facilities for those not
disabled

E.C.H.O
Elderly Cottage Housing Opportunities
 Problem – zoning ordinance restrictions on
2 unit conversion
 Reality is that we will move to 70 million +
elderly in the U.S. by 2050

Supplemental Use Requir.
All zoning ordinances impose additional
requirements on certain specified activities
to further limit their operations
 These are special rules that apply to
certain uses that are known to have
externalities that “spill over into the
neighborhood” or the community in
general.

Supplemental Examples
Adult Establishments
 Accessory Uses
 Bed and Breakfast
 Hazardous Materials
 Day Care
 Kennels
 Quarries

Conditional Uses
Each district typically lists permitted and
conditional uses
 A conditional use (generally) is one that
would be permitted except for special
characteristics of the activity
 In addition to a building permit, a
conditional use permit is required

Variations on a Theme
In the normal mode the conditions are
established in the ordinance that must met
before the use permit is granted
 In the waffle mode, the conditions are
established at the time of the hearing
 An independent hearing is required
 Some ordinance are practically based on
condition use permits

More Conditions
A conditional use must be distinguished
from conditions in zoning
 Conditional uses must be specifically listed
– not thought up as the need arises
 Involves a public hearing

The Sign Regulations
What Joy!
A Very Short History
First period – rejection
 Second period – partial acceptance if
aesthetics is secondary
 Third period – these slipped by
 Fourth period – full acceptance

But First
A SHORT TOUR
All Types of Signs
Some Offensive
Some Catch Your Eye
Part of Americana
Some Are Racist
There Are Big Ones
Lighted Ones
Painted Ones
Pretty Good Looking Ones
And Truly Ugly
Old Wall Signs
And Political Signs
And Lotta Signs